FEDERAL COURT OF AUSTRALIA MZAGD v Minister for Immigration and Border Protection [2016] FCA 673 Appeal from: Application for leave to appeal: MZAGD v Minister for Immigration and Border Protection [2015] FCCA 3532 File number: VID 944 of 2015 Judge: JESSUP J Date of judgment: 31 May 2016 Date of hearing: 31 May 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 9 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms C Tipene Solicitor for the Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS VID 944 of 2015 BETWEEN: MZAGD Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JESSUP J DATE OF ORDER: 31 MAY 2016 THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the Minister's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JESSUP J: 1 This is an application for leave to appeal from an interlocutory order made by the Federal Circuit Court on 11 December 2015, by which the applicant's application for the reinstatement of his proceeding, which had been dismissed for his failure to attend a hearing in that court on 20 August 2015, was dismissed. On an application of this kind, the court is concerned with two main questions, namely, (1) whether the decision sought to be appealed from is attended by sufficient doubt to warrant reconsideration on appeal and (2) whether, assuming the decision below to be wrong, substantial injustice would be caused to the applicant if leave to appeal were not granted. 2 The proceeding in the Federal Circuit Court was based on an application made by the applicant for judicial review of a decision of the Refugee Review Tribunal given on 22 May 2014 in which an earlier decision of a delegate of the respondent Minister not to grant the applicant a Protection (Class XA) visa was affirmed. When the proceeding came on for hearing before the Federal Circuit Court on 20 August 2015, the applicant did not appear and his proceeding was dismissed. On 8 September 2015, the applicant applied for reinstatement of his proceeding and it was that application which came before that court on 11 December 2015. 3 The primary judge dealt with it by considering whether the applicant's application for judicial review would have a reasonable prospect of success if the reinstatement application were granted. Her Honour held that it would not. Her Honour held that the applicant's complaints about the way the Tribunal had disposed of his application for review were wholly concerned with an attempt to re-engage with the Tribunal's fact-finding process, and were devoid of any credible indication of jurisdictional error. In the concluding paragraph of her reasons, the primary Judge said: I have been unable to discern anything else in the [T]ribunal's reasons for decision, or decision-making process, which is indicative of jurisdictional error. As there does not seem to be any reasonable prospect of the applicant establishing a jurisdictional error, and as the applicant's claims regarding his reasons for not attending the hearing on 20 August 2015 are not entirely adequate, I am not persuaded that the proceeding should be reinstated. Consequently, the application will be dismissed. 4 To the extent that her Honour took into account the inadequacy of the applicant's express reasons for not attending the hearing on 20 August 2015, no challenge is now made by the applicant to that aspect of her Honour's reasons. Rather, in the grounds of appeal upon which the applicant would rely if leave were granted, he has gone no further than to regurgitate the five grounds which he advanced in the Federal Circuit Court, each reclothed with the contention that that court erred by not accepting the ground in question. 5 The essence of the applicant's factual case in the Tribunal was that, upon a visit which he made to his home country, Sri Lanka, in 2011, he took steps with a view to establishing a restaurant business. He was advised that it was at least advisable and probably necessary for him to meet directly with the Minister responsible for such things, a Merwyn Silva MP, in order to secure the required licence. Although he understood that it might be necessary for money to pass hands for him to obtain this licence, he was taken aback by the size of the payment that, according to his version of the events, the Minister required. He could not afford to make such a payment, and subsequently contacted the media about the demand for payment which the Minister had made and, according to the applicant, supported his story with what was said to have been a very poor mobile phone recording of his conversation with the Minister made unbeknownst to the Minister at the time. These actions on behalf of the applicant led, so he told the Tribunal, to a series of repercussions for him at the hands of people who were inferentially associated with the Minister, and which provided the basis for what he claimed to be a well-founded fear of persecution on political grounds. 6 Fundamental to the applicant's case in the Tribunal was the proposition that he took steps to establish a restaurant in Sri Lanka in 2011, including meeting with the Minister. The Tribunal said: The Tribunal does not accept the applicant's claims regarding his problems with [Merwyn] Silva are credible. Based on the numerous inconsistencies and discrepancies in the applicant's evidence and the implausibility of aspects of his claims, as discussed with the applicant in the hearing and in detail below, the Tribunal finds the applicant is not a witness of truth and that his claims are not credible. The Tribunal went on to state that it did not accept that, when the applicant went to Sri Lanka in June 2011, he looked into opening a restaurant and it did not accept that he met with the Minister as he had claimed. 7 The Tribunal proceeded to consider each of the consequential, and in some respects sequential, events in Sri Lanka which followed upon the meeting with the Minister as he had claimed it to be. In each case, the Tribunal did not accept the applicant's testimony as truthful, but it is probably sufficient for present purposes to note that the refusal by the Tribunal to accept the applicant's starting point that he took steps to investigate the prospect of opening a restaurant effectively meant the end of his case for a protection visa at that level. Referring to that first dimension of the applicant's case, the primary Judge said: 12. The application to this court had five grounds. The first ground was that: The [T]ribunal has erred in its decision when it says he did not meet with the Minister for plans to open a restaurant in Sri Lanka, as there was ample evidence to support this act. 13. This ground is seeking impermissible merit review. The court cannot re-evaluate the facts of a case and come to a different view. The applicant appears to simply be challenging the [T]ribunal's fact-finding on the ground that he does not agree with it. The [T]ribunal is entitled to make credibility findings and is entitled to reject an applicant's claims without having evidence to the contrary. This ground has no reasonable prospect of success. Although the primary Judge went on to consider each of the other four grounds advanced before her, corresponding, as I have said, to the prospective grounds of appeal advanced in this court, her Honour's conclusion in relation to the first ground was effectively terminal for the applicant, as had been the Tribunal's finding of fact upon which that conclusion was based. 8 In this court, the applicant has made no submissions in writing, and the oral submissions which he made today were unconcerned with the question whether the primary Judge erred in the way she disposed of his application for reinstatement. I have considered her Honour's reasons and, for my own part, they appear quite unobjectionable. As I have said, her Honour's conclusion on the first ground effectively put an end to the applicant's case in the Federal Circuit Court, but her Honour dealt with each of the other four grounds, I have considered also the way in which she did so. In my view, her Honour's conclusion that no ground had any reasonable prospect of success was, in every respect, self-evidently correct. 9 The conclusion I reach, therefore, is that the judgment in respect of which leave to appeal is sought is not attended by sufficient doubt to warrant the attention of a court having appellate jurisdiction. The application for leave to appeal is dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 6 June 2016