FEDERAL COURT OF AUSTRALIA SZIDH v Minister for Immigration & Citizenship [2007] FCA 369 SZIDH v MINISTER FOR IMMIGRATION AND CITIZENSHIP NSD2533 OF 2006 JESSUP J 2 MARCH 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD2533 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIDH Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: JESSUP J DATE OF ORDER: 2 MARCH 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The name of the first respondent as it appears in the title to the proceeding be amended to Minister for Immigration and Citizenship. 2. The Application be dismissed. 3. The applicant pay the costs of the first respondent fixed in the sum of $1,900. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD2533 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIDH Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: JESSUP J DATE: 2 MARCH 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 28 December 2006, the applicant applied for leave to appeal from a judgment of the Federal Magistrates Court given on 6 December 2006. In that judgment the court rejected what it described as an application for reinstatement of a proceeding in that court in which the applicant had applied for writs of certiorari, mandamus and prohibition and for declaratory relief in relation to a decision of the Refugee Review Tribunal ('the Tribunal') given on 5 December 2005 and handed down on 22 December 2005. 2 When the application was listed for trial before the Federal Magistrates Court on 8 November 2006, the applicant did not appear. Neither did his wife SZIDI, who was also an applicant in that proceeding. The Federal Magistrate considered the matter in the absence of the applicant and ordered that the application be dismissed. Shortly thereafter the applicants, by which I mean SZIDH and SZIDI, applied for the orders dismissing their proceeding to be set aside pursuant to r 16.05(2)(a) of the Federal Magistrates Court Rules 2001(Cth) ('the Rules'). That application came before the same Magistrate on 6 December 2006 and after hearing from the applicant, the Magistrate dismissed the application for reasons which he then gave. 3 That being an interlocutory decision or interlocutory judgment, a challenge to it required the leave of this court and it is that leave for which the applicant SZIDH applied in his application of 28 December 2006 to which I have referred. 4 For reasons which have not been explained but are possibly by way of oversight, the other person who was an applicant in the proceeding before the Federal Magistrates Court, SZIDI, did not participate in the application for leave to appeal in this court. However, the existing applicant has sought that SZIDI be added as a party to the present application and Ms Hooper, who represents the respondent, has raised no objection to that course under O 6 r 8(2) of the Rules of Court, however a person shall not be added as an applicant without that person's consent. There is no evidence that SZIDI consented to be added as an applicant in this proceeding. I propose, therefore, to determine this application as relating only to the applicant SZIDH. 5 The approach which the Federal Magistrate took to the application to set aside the order dismissing the applicant's proceeding was a two-stage one. First, he considered whether the applicant had a legitimate excuse for not attending the trial when it was originally commenced on 8 November 2006. In that respect, he was told that the applicant was unwell at the time, and material was placed before him that satisfied him that that was indeed the case. His Honour proceeded to express his satisfaction that a reasonable excuse had been provided, having regard to the applicant's medical condition. 6 The second step which the Federal Magistrate took was to consider whether the applicant's case on the merits was fairly arguable. This required him to consider the jurisdictional objections which the applicant had to the Tribunal's decision. He did so in some detail, and arrived at the conclusion not only that there had been no jurisdictional error demonstrated, but also that the applicant did not have an arguable case of jurisdictional error. It was substantially because of that conclusion that his Honour dismissed the application for the earlier orders to be set aside. Although his Honour did not refer to any authority in this regard, as it happens he was following the correct approach, which a court should follow, when jurisdiction of the kind referred to in Rule 16.05(2)(a) of the Rules is sought to be exercised. That paragraph permitted the court to vary or set aside a judgment which had been entered if the order in question had been made in the absence of a party. The precondition referred to in that paragraph had been satisfied in the present case in that the order dismissing the applicant's proceeding in the Federal Magistrates Court had been made in the absence of the applicant. Further, by the time the matter came before the Federal Magistrate on 6 December 2006, that order had been entered. 7 The question arises whether the Magistrate correctly approached the matter of the exercise of his discretion, having found that the statutory precondition was satisfied. This question was dealt with by the Full Court in Davies v Pagett (1986) 10 FCR 226. Most of the cases referred to in the authorities concerned with the exercise of a power such as that arising under Rule 16.05(2)(a) seem to involve later applications by unsuccessful respondents, or defendants, to have orders made in favour of applicants, or plaintiffs later set aside. However, I can think of no reason why the principles developed under that line of jurisprudence would not equally be applicable to a circumstance in which the final order in question was in favour of a respondent, and had the effect of dismissing an applicant's proceeding. 8 In Davies v Pagett, the Full Court referred to what was said by Lord Wright, in Evans v Bartlam [1937] A.C 473 at 489. His Lordship said (as set out at p 229 of 10 FCR): A discretion necessarily involves a latitude of individual choice according to the particular circumstances, and differs from a case where the decision follows ex debito justitiae once the facts are ascertained. In a case like the present there is a judgment, which, though by default, is a regular judgment, and the applicant must show grounds why the discretion to set it aside should be exercised in his favour. The primary consideration is whether he has merits to which the Court should pay heed; if merits are shown the Court will not prima facie desire to let a judgment pass on which there has been no proper adjudication. Having dealt with a number of other matters, the Full Court said (at p 231): Since the decision of the House of Lords in Evans v Bartlam (supra), the settled course of authority in England and in this country has emphasised, as fundamental to the exercise of the judicial discretion to set aside a default judgment, the need for a defendant to show a prima facie defence on the merits. In the language of Lord Wright, in the passage cited by the learned judge, this is "the primary consideration". 9 Since this is an application for leave to appeal, the question before me is not whether the Federal Magistrate was in fact in error, but rather whether the two requirements, to which the Full Court referred in Decor Corporation Pty Ltd v Dart Industries Incorporated (1991) 33 FCR 397, are satisfied. Those requirements are first, that the applicant should show that there is sufficient doubt as to the correctness of the judgment below to warrant review, and secondly, that assuming the judgment below to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. 10 As is apparent from the passages from Davies v Pagett to which I have referred, there can be no argument about the approach which the Federal Magistrate took in this case. If anything, that approach was somewhat more favourable to the applicant than need have been, since his Honour went further than merely to conclude that the applicant did not have a prima facie case on the merits. His Honour was able to conclude that the applicant did not have an arguable case. The only question which remains, therefore, is whether I should be satisfied that his Honour was not only wrong in his conclusion about the arguable case, but wrong to such an extent that I should hold that the applicant does have a prima facie case on the merits. 11 The applicant applied for declarations and prerogative remedies in relation to a decision of the Tribunal which was made on the papers and without the applicant himself having accepted the Tribunal's invitation to appear before it and to advance a case at a hearing of the Tribunal. The Tribunal identified the fears of persecution which the applicant claimed to have in his protection visa application and referred to the facts which the applicant recited in that application. Manifestly, the Tribunal identified in that material a considerable number of matters upon which it required further explanation. Those matters were constituted by what appeared to be internal inconsistencies, oddities or incongruities within the protection visa application itself, and particularly within a short statement which the applicant provided with that application. 12 In a significant paragraph of its reasons, the Tribunal referred to three categories of factual material which the applicant had put forward apparently in support of his basic proposition that a fear of persecution which he claimed to have was well-founded. In each case, the Tribunal was troubled by aspects of the material provided by the applicant in that application which either contradicted the proposition that the applicant had a well-founded fear of persecution or at the very least required some explanation or elaboration. In each of these three categories of factual material, the Tribunal made a statement which commenced, "The applicant has not explained," and it then referred to the particular incongruity or contradiction which was of concern to it. Having referred to these three areas, the Tribunal then said: In view of the lack of detail in the protection visa application, I am unable to make findings of fact in relation to the applicant's claims. It follows that I am not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason arising from his claims. The applicant has not suggested that he fears returning to India for any other reason than that set out in his protection visa application and no other reason is suggested on the evidence before me. Accordingly, I am not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason. 13 There is only a very approximate correspondence between the draft Notice of Appeal which the applicant has filed in this court and the grounds in the original Application on the basis of which the Federal Magistrate made his ruling on 6 December 2006. In those circumstances, I believe that my function is to examine whether the matters raised in the draft Notice of Appeal identify errors, oversights or omissions on the part of the Federal Magistrate that would legitimately sustain the proposition that he was wrong to conclude that there was no arguable case of jurisdictional error on the part of the Tribunal. I say that because the draft Notice of Appeal is really all that I have before me on behalf of the applicant in support of his application for leave to appeal. The applicant has not filed any outline or summary of submissions, and in representing himself in court today he said nothing that would throw any light upon the matters with which I happen to be concerned. 14 In the first ground of appeal, the applicant seeks to allege that his Honour erred in finding that there was no jurisdictional error with regard to the definition of persecution. I do not believe that his Honour went into the question of the definition of persecution at all, probably for the very good reason that it was not part of the applicant's case before him, and neither should it have been, because it seems to me that the question simply did not arise in the way that the Tribunal dealt with the matter in its decision on 5 December 2005. As is clear from what I have said about that decision, it was based entirely upon the applicant's failure to establish the basic factual ingredients which would be necessary to hold that there was a fear of persecution which was well-founded regardless of any particular definition or issues that arose in relation to the concept of persecution. 15 In his second ground of appeal, the applicant alleges that his Honour erred in accepting the Tribunal's decision, especially when the Tribunal had failed to consider the availability of effective state protection. For the same reasons that I have referred to in relation to the first ground of appeal, the issue of effective state protection simply did not arise. I can understand that a tribunal might be required to consider that issue where otherwise an applicant before it had made good the primary case that within a particular environment there were circumstances giving rise to a well-founded fear of persecution. However, that was not this case. There is nothing in the material to have given rise to any obligation on the Tribunal's part to deal with the subject of effective state protection. 16 In his third ground of appeal, the applicant alleges that his Honour erred in a statement which he made in his reasons for judgment as follows: In this instance, I am satisfied, again as submitted by the First Respondent, that the Tribunal was entitled to have regard to material on file and as a consequence of the failure of the Applicant to attend the hearing that obviously became the primary information the Tribunal then had available to it in making its decision. Although that is the extent of the passage in this paragraph of his Honour's reasons that is referred to in the third ground in the draft Notice of Appeal, the immediately preceding sentence in the paragraph makes it clear that his Honour was there referring to an issue which was raised by the applicant before him apparently, namely, whether the Tribunal made its decision without the support of any evidence. That is not an issue which is covered by the draft Notice of Appeal. I could not therefore find that his Honour erred in relevant respects to such an extent that would make it more likely that the appeal would be allowed according to the test in Decor v Dart. However, in the particulars subjoined to this ground of appeal in the draft Notice of Appeal, the applicant refers to s 424A of the Migration Act 1958 (Cth) ('the Act') in such a way as to make it tolerably clear that he would wish to advance a case before the Federal Magistrates Court to the effect that the reliance by the Tribunal upon the material in his protection visa application amounted to reliance upon information of a kind covered by the requirements of s 424A(1). 17 This raises the question whether the identification by the Tribunal of what I have described as inconsistencies or incongruities within a protection visa application should be regarded as information of the kind to which s 424A refers in accordance with the jurisprudence of this Court as established in SZEEU v The Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. 18 On one view, where the Tribunal points to a fact or circumstance contained within the protection visa application as a counterbalancing factor for some other fact or circumstance from which an applicant claims a well-founded fear of persecution, the former fact or circumstances or circumstance should be regarded as information by reason of which the decision under review might be affirmed. On another view, for the Tribunal to proceed by this process of, in effect, balancing contra-indications, is to do no more than to identify gaps, defects or lack of detail or specificity in the evidence or to weigh up the evidence by reference to those gaps, etc a process which does not involve obligations under s 424A(1); VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477. 19 The latter approach was taken by Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1195, upon which Ms Hooper relied and to which the Federal Magistrate referred in connection with the matter of s 424A. For my own part, I consider that the question whether a particular fact, circumstance, document or entry constitutes information of the kind referred to in s 424A will always be a question of fact, and no more than general assistance should be derived from the way in which other facts have been dealt with and other cases decided on previous occasions. However, the approach which Allsop J took, and the observations which he made about s 424A, are useful in the present circumstances if for no other reason than to assist the court in achieving a thread of consistency in its jurisdiction in this area. 20 For that reason I shall refer to the reasons of the Tribunal in SZEZI as quoted by Allsop J at par 8 of his reasons for judgment. In that case the Tribunal had said: The applicant … has not provided the level of detail necessary to satisfactorily establish the relevant facts in his case. Questions which remain unanswered include precisely when and how [the applicant's] alleged homosexuality became known to others, what he means when he says that he and his boyfriend were "arbitrated" by the local council and mosque, how he was able to leave Bangladesh unharmed if, as he claims, he is a risk of [sic] being killed or crippled because of his sexual preference, why he returned to Saudi Arabia after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known to others given his claim that his sexual preference would be known if he returned there now. If [the applicant] had attended the hearing it would have been possible to investigate these matters more fully. However, despite being advised that I had reviewed the papers related to his case and could not make a favourable decision on the basis of that information alone, he has provided no further information in support of his claims and declined to attend the hearing and, on the evidence currently before me I am not satisfied that his claims regarding his sexuality and the problems it has caused him in Bangladesh are true. I therefore cannot be satisfied that he has a well-founded fear of persecution in Bangladesh because of [sic] he is a member of the particular social group of Bangladeshi homosexuals or for any other reason contained in the Convention. In this passage it will be seen that the Tribunal proceeds by identifying unanswered questions which presented themselves on the protection visa application papers with which it was concerned. Stylistically, the approach was different from the one taken by the Tribunal in the present case. Here, instead of posing such questions, the Tribunal contrasted particular facts in the applicant's protection visa application which sat uncomfortably alongside each other. 21 In the case of SZEZI Allsop J described the process undertaken by the Tribunal in these terms (at paragraph 29): The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason. In the case before me, I consider that, when properly understood, the Tribunal has gone no further than did the Tribunal in SZEZI. Grammatically, it has articulated its concerns rather differently, but in the result I am persuaded that it has done no more than to identify, as I have expressed it earlier, contradictions, oddities and incongruities within the protection visa application, and highlighted the fact that the applicant had not chosen to attend a hearing of the Tribunal to provide an explanation of those matters. It is significant that, having referred to these matters, the Tribunal said that it was the lack of detail in the protection visa application that made it unable to make findings in favour of the applicant. Like Allsop J in SZEZI, I consider that this process of reasoning which is revealed by the Tribunal's written decision did not give rise to any obligations under s 424A(1) of the Act. 22 In his fourth ground in the draft Notice of Appeal, the applicant alleged that the Tribunal and his Honour did not consider the serious harm test, and whether the applicant would be at risk if he were to return to India. I confess to some difficulty understanding what the applicant means by that proposition. The question which arose directly before the Tribunal was whether the applicant had a well-founded fear of persecution. Whether such fear as the applicant had involved a fear of something which amounted to serious harm is a question which never arose at all before the Tribunal, for the reason that it was not persuaded that the applicant had any well-founded fear that might be relevant under the Convention. 23 In his particulars subjoined to the fourth ground in the Draft Notice of Appeal, the applicant alleged that the Tribunal did not address the question whether there were other parts of India to which the applicant could reasonably relocate. In the circumstances before the Tribunal, as submitted by Ms Hooper this morning, the question of relocation simply did not arise. 24 In the fifth ground advanced by the applicant, he alleged that the Tribunal failed properly to consider discrimination amounting to persecution in India, having applied the wrong test. This too is a generally-expressed ground which, if I may say so, appears to pass the Tribunal's decision like a ship in the night. One therefore looks to the particulars to see what the ground means. It is said in the particulars that the Tribunal failed properly to consider the serious harm that the applicant was likely to face if he returned to the country considered by the Tribunal to be safe to return. The Tribunal did not form a conclusion that India was a safe place to which the applicant could return. The Tribunal simply said, as was the fact, that the applicant had not provided sufficient information and sufficient detail to persuade it that he would face persecution if he were to return there. The particulars also allege that his Honour, in accepting all that the Tribunal had determined without actually considering the applicant's claims, was guilty of jurisdictional error. Manifestly there is no substance in the suggestion that the Federal Magistrate was "guilty" of jurisdictional error, to use the applicant's expression. 25 Turning to the sixth ground in the draft Notice of Appeal, here the applicant alleges that the Tribunal failed to consider the applicant's claims of well-founded fear of persecution. The ground proceeds to develop the legal proposition that a failure to consider a particular claim is a failure to exercise jurisdiction. I need not consider any of the legal matters referred to in the particulars subjoined to this ground because the basic proposition is without merit. The very question which the Tribunal not only considered, but stated it considered in its written decision, was whether the applicant had demonstrated that he had a well-founded fear of persecution. Having referred to its inability to make findings of fact in relation to the applicant's claims because of the lack of detail in the protection visa application, the Tribunal proceeded to say that it followed that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason arising from his claims. The suggestion that the Tribunal failed to consider the applicant's claims of well-founded fear of persecution in the circumstances is quite fanciful. 26 Although, for reasons to which I referred earlier, the way in which the case was presented before the Federal Magistrate appears not to be on all fours with the case sought to be conducted on appeal in this court as reflected in the draft Notice of Appeal, I have come to the same conclusion as his Honour, namely, that the applicant does not have what the authorities refer to as a prima facie case on the merits. 27 It follows that the fundamental discretionary consideration by reference to which the Federal Magistrates Court would exercise jurisdiction under r 16.05(2)(a) was properly decided against the applicant. His Honour was correct to have rejected the applicant's application. It follows also that in accordance with the test propounded in Decor v Dart I would hold that the appeal which the applicant proposes does not have sufficient prospects of success to justify the grant of leave. Indeed, I doubt that it would have any prospect of success at all. 28 I do not decide this matter by reference to the second of the two requirements in Decor v Dart as, although the prospect of injustice would normally be fairly obvious in a case of an applicant who claimed jurisdictional error in the processing of his or her application for a protection visa, the particular forensic circumstances in which this matter came before me today, and the circumstances which led to the orders of the Federal Magistrate may give rise to other considerations. As I have said, I do not propose to enter upon such matters. It is sufficient if I decide the application, as I do, under the first of the requirements in Decor v Dart. 29 I therefore propose to dismiss the application. I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jessup . Associate: Dated: 15 March 2007 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: K Hooper Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 2 March 2007 Date of Judgment: 2 March 2007