FEDERAL COURT OF AUSTRALIA SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020 Appeal from: SZWBK & Ors v Minister for Immigration & Anor [2017] FCCA 434 File number: NSD 419 of 2017 Judge: LEE J Date of judgment: 4 August 2017 Catchwords: MIGRATION – application for judicial review of refusal to grant Protection (Class XA) Visa – application dismissed in the Federal Circuit Court of Australia – appeal from primary judge's decision PRACTICE AND PROCEDURE – application pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) to dismiss an appeal in the absence of the appellants – where application for adjournment on medical grounds made by the first appellant by letter sent to the Court on the morning of the appeal – where medical evidence unsatisfactory – where application for adjournment dismissed – where appeal does not have reasonable prospects of success – appeal dismissed with costs Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 36(2B)(a) Federal Court Rules 2011 (Cth), rr 36.75(1)(a)(i), 36.75(2) Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) Cases cited: ALG15 v Minister for Immigration and Border Protection [2017] FCA 560 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Singh v Minister for Immigration and Border Protection [2016] FCA 108 SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 SZWBK & Ors v Minister for Immigration & Anor [2017] FCCA 434 Date of hearing: 4 August 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellants: The Appellants did not appear Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent entered a submitting notice, save as to costs ORDERS NSD 419 of 2017 BETWEEN: SZWBK First Appellant SZWBL Second Appellant SZWBM (and another named in the Schedule) Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LEE J DATE OF ORDER: 4 AUGUST 2017 THE COURT ORDERS THAT: 1. Pursuant to FCR 36.75(1)(a)(i), the appeal be dismissed. 2. The first, second and fourth appellants are to pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) LEE J: A introduction 1 This is an appeal from orders and judgment of the Federal Circuit Court made on 10 March 2017 which dismissed the appellants' application for constitutional writs in respect of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 January 2015. The Tribunal had affirmed a decision of the delegate of the first respondent (Minister) not to grant the appellants Protection (Class XA) Visas. 2 The appeal was filed on 27 March 2017 and was accompanied by an affidavit of the first appellant affirmed on the same date. Both that affidavit and the notice of appeal provided an email address for service. The matter came before a Registrar of this Court on 1 May 2017, on which occasion directions were made for the filing of an appeal book and submissions. On 10 July 2017, a communication was made by the Court to the parties, including to the email address given by the first appellant, providing notice that the appeal was listed for hearing today, 4 August 2017, at 2.15 pm. In the usual way, that communication noted that "orders determining the matter (including an order as to costs) may be made in your absence if you or your lawyer do not attend court at the specified time". 3 No written submissions were filed on behalf of the appellants in accordance with the directions made on 1 May 2017. At approximately 9:55 am on 4 August 2017, that is, only some hours before the hearing of the appeal, the Court received correspondence from the first appellant. Counsel for the Minister correctly characterised that communication, although it does not say so in terms, as a request to adjourn the proceedings, on behalf of all the appellants, to an unspecified date (Adjournment Request). 4 The Adjournment Request is opposed by the Minister. In addition, if the Adjournment Request is refused, the Minister applies for an order pursuant to FCR 36.75(1)(a)(i), which provides that if an appellant is absent when an appeal is called on for hearing, a respondent to the appeal may apply to the Court for an order that the appeal be dismissed. 5 I shall deal with each of these applications in turn. B the adjournment request Background 6 The Adjournment Request, which was not copied to the Minister's representatives, was in the following terms: Your Honour, [m]y Court hearing is due in your Court today at 2:15 pm. I was prepared to attend this Court hearing today. Unfortunately, I am unable to attend court proceedings in Your Honour's Court today due to severe back pain. I am hardly able to sit and walk due to this back pain since [sic] last few weeks. My treating doctor has advised me for [sic] complete bed rest. I am attaching medical certificates with this application for your consideration. Your honour I am requesting to [sic] exempt me from today's court hearing in your court. This is my humble request to you. I promise to attend the next court hearing under any circumstances. I hope Your Honour will take a sympathetic view considering my back pain since [sic] last few weeks. Once again, I promise to attend your court for next hearing, kindly please excuse my today's attendance due to my back pain. 7 A mobile telephone number accompanied the Adjournment Request. That mobile telephone number was different from the mobile telephone number which had been provided to the Court when the notice of appeal was filed. Also accompanying the Adjournment Request were two medical certificates from what was described as the "Advanced Medical Centre". The first was dated 18 July 2017 (that is, three weeks prior to hearing) and was in the following terms: This is to certify that [the first appellant] is suffering from [sic] medical condition. [The first appellant] will be unfit for his normal duties from 18/7/2017 to 21/7/2017 inclusive. 8 The medical certificate was signed by a medical practitioner who identified himself as Dr Md Nurul Islam. The second medical certificate was dated 3 August 2017 and was from the same doctor. This medical certificate read as follows: This is to certify that [the first appellant] is suffering from [sic] medical condition. [The first appellant] will be unfit for his normal duties from 3/8/2017 to 10/8/2017 inclusive. 9 A further document was provided which appeared to be a prescription obtained at the same time as the first medical certificate, for what appears to be pain-relieving medication. 10 At 10.04 am on 4 August 2017, my Associate forwarded a copy of the Adjournment Request to the solicitors for the Minister by email. Shortly thereafter, the solicitors for the Minister replied to my Associate (with a copy to the first appellant's email address), notifying that the Minister was instructed to oppose an adjournment, but asking my Associate whether confirmation could be obtained as to whether arrangements could be made to enable telephone attendance at the hearing. 11 Immediately prior to the appeal being called on for hearing at 2.15 pm, several attempts were made by Court staff to contact the first appellant at both mobile telephone numbers he had provided to the Court. These attempts were unsuccessful, with the telephone calls going to message bank. When the matter was called at 2.15 pm, I indicated for the transcript that I had received a copy of the Adjournment Request, and I adjourned in order to see whether further attempts to contact the first appellant would be met with success. Attempts were again made to contact the first appellant at both mobile telephone numbers provided and again those attempts were unsuccessful. 12 There are four appellants in this matter. The first appellant made specific claims to be owed protection (to which I will return below), and the second to fourth appellants relied on their membership of the first appellant's family unit. The second appellant is the first appellant's wife, and the third and fourth appellants are their sons (currently aged 14 and 31). In these circumstances, I also arranged for the matter to be called three times outside Court to see whether there would be an appearance by one of the other appellants. There was no appearance. Consideration 13 The only basis upon which an adjournment is sought is as indicated in the Adjournment Request and the material provided therewith. 14 No explanation was provided as to why the medical difficulties said to have been suffered by the first appellant were not communicated at an earlier time, given that the condition was apparently extant as long ago as 18 July 2017. Leaving that issue to one side, this case seems to be an example falling into the same category as considered by Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 and Pagone J in Singh v Minister for Immigration and Border Protection [2016] FCA 108, that is, where a medical certificate is, on its face, quite unsatisfactory. 15 The medical certificates do not purport to address the critical question of whether, and if so why, the relevant "medical condition" would prevent the first appellant from travelling to Court and participating effectively in the hearing. Like the position in NAKX and Singh, I do not accept, on the basis of the material provided, that the Delphically described "medical condition" would have prevented the first appellant from travelling to Court and participating effectively in the hearing. Even if I was wrong about this, there is no explanation as to why the first appellant could not have made the necessary arrangements to attend the hearing by telephone, nor is there any explanation as to why the other appellants have also not appeared. I agree, with respect, with what Pagone J said in Singh (at [2]), namely that: …what needs to be provided for a medical certificate to be meaningful is material that establishes why it is or how it is that the appellant suffering from a medical condition would be unfit for participation at a court hearing. 16 The medical certificates provided by the first appellant are noticeably deficient in this regard. I do not regard the contents of the Adjournment Request as augmenting the content of the medical certificates in any meaningful way. Although the first appellant says his treating doctor has advised him to obtain "complete bedrest", the medical certificates do not make that plain, nor is it evident why this would prevent participation by telephone; again, even if this is the case, there is no explanation as to why the condition could not have been brought to the attention of the Court at an earlier stage such that appropriate arrangements could then have been made. 17 In all the circumstances, I refuse the application for an adjournment. C minister's application for dismissal of the appeal Relevant Principles 18 The Minister applies for an order pursuant to FCR 36.75(1)(a)(i) that the appeal be dismissed. In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, Ryan J considered the principles governing an application for reinstatement of a matter dismissed in the absence of a party. At [7], his Honour recognised that where reinstatement is sought, a discretion falls to be exercised by the Court which requires consideration of three factors: first, whether there is a reasonable excuse for the party's absence; secondly, the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and thirdly, whether the applicant for reinstatement has a reasonable prospect of success on the appeal. 19 Against the possibility that an application may, at some future time, be made to me pursuant to FCR 36.75(2), as I said in ALG15 v Minister for Immigration and Border Protection [2017] FCA 560 at [13], I do not believe it is either necessary or appropriate that, on the hearing of the Minister's application, I should descend to forming a concluded and final view as to the underlying merits of the appeal. However, I do think it is relevant for the purposes of considering the question of the dismissal of the appeal that I give some consideration as to whether or not it is evident that the appeal has, on at least a preliminary view, reasonable prospects of success. Consideration 20 The notice of appeal contains 13 grounds of appeal. However, I agree with the Minister's submission that these "grounds" are in the form of submissions in support of the appellants' contention that the primary judge erred in determining whether the Tribunal failed to consider their claims under s 36(2)(a) of the Migration Act 1958 (Cth) (Act) and failed to apply the correct test in relation to relocation. 21 By way of background, in his initial claims for protection, the first appellant claimed to own several shipping companies, and to fear harm from the Bangladesh Awami League (BAL) because he successfully brought court proceedings against an individual (Aggressor) who had political connections with the BAL. Those court proceedings related to a commercial dispute concerning the sale of two ships by the first appellant to the Aggressor. The first appellant claimed that the police would not act against the Aggressor and further contended that associates of the Aggressor threatened him and his family, and subjected him to physical attack. The first appellant also claimed to fear harm for reasons of his political opinion, as someone who was imputed to have political views antithetical to the BAL. 22 In broad terms, the delegate of the Minister found that the first appellant's claims related to a personal matter and that the first appellant did not fear harm as a consequence of his race, religion, nationality, political opinion or membership of a particular social group, and hence that there was no necessary nexus within the meaning of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (together, Convention). Further, in considering whether the first appellant satisfied the complementary protection criteria pursuant to s 36(2)(aa) of the Act, the delegate found that the first appellant would have effective state protection in Bangladesh if he were threatened with harm. In the alternative, the delegate found that the first appellant could 'write off' the alleged debt owed to him by the Aggressor, which was said to be not unreasonable, given that the first appellant would invariably be doing the same thing if he were found to be owed protection obligations by Australia. 23 The Tribunal accepted the underlying facts concerning the commercial dispute, but also found that any harm perpetrated against the first appellant and his family was motivated by financial matters rather than any Convention reason. Despite the accepted political connections between the Aggressor and the BAL, the Tribunal found that the Aggressor targeted the first appellant to stop him from pursuing the commercial dispute in the courts, in order to obtain a financial advantage. The Tribunal was not satisfied with the first appellant's evidence that an essential and significant motivation for the Aggressor or his associates was imputed political opinion, and was further unsatisfied that the first appellant would be denied protection for any Convention reason. 24 Having accepted that the first appellant was involved in a commercial dispute and was unable to access police protection due to the Aggressor's connections with local law enforcement, the Tribunal then proceeded to consider the complementary protection criterion. The Tribunal found that there was a real risk that the appellant or his family would be physically attacked by the Aggressor or his associates if they returned to their home area, but found that they could reasonably undertake relocation to another area of Bangladesh. The Tribunal found that the first appellant's accepted fear of harm was localised to Dhaka and then considered (as it was required to do, see SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18) whether relocation was reasonable and practicable in the particular circumstances and the impact of undertaking relocation within Bangladesh. 25 The Tribunal found it was reasonable for the appellants to relocate within Bangladesh to avoid the real risk of significant harm they faced if they returned to their home area. Accordingly, the Tribunal found that, pursuant to s 36(2B)(a) of the Act, there was not a real risk that the appellants would suffer significant harm if they returned to Bangladesh. It is clear that the Tribunal did consider, as required, whether the relocation was reasonable and practicable in the particular circumstances of the first appellant and the impact upon him of relocating within Bangladesh. It found, on the basis of independent information, that there were no legal fetters to internal relocation. It also found that the first appellant was able to continue to operate one ship in Bangladesh and support his family financially, and was not tied to Dhaka, given that he had previously lived for extended periods in both North Africa and Asia. 26 The Tribunal further found that the first appellant had qualifications and experience in engineering that allowed him to find employment wherever he had been located, and that this would equip him to find employment in major cities in Bangladesh. Plainly, these sorts of matters were open to the Tribunal to find on the available material for the reasons it gave. Finally, the Tribunal found that the first appellant did not meet the complementary protection criteria in respect of the claim to fear harm on the basis of his political activities and opinion, and as a wealthy businessman. 27 In February 2015, the appellants filed an application in the Federal Circuit Court seeking judicial review of the Tribunal's decision. Unlike here, the appellants were then legally represented. Unlike the broader range of matters raised in the notice of appeal in this Court, the sole ground of review before the primary judge was that the Tribunal had adopted the wrong test in applying s 36(2B)(a) of the Act to the facts of the case because it had formed the view that the first appellant could return to Bangladesh and not be involved in the shipping industry, or could manage his business remotely. The primary judge held that the Tribunal correctly stated the test for relocation, namely (at [15]): …[w]hether relocation is reasonable, in the sense of 'practical', must depend on the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. 28 The primary judge held that it was apparent that there was nothing the appellants said which indicated that they would be unable to earn a living by pursuing another occupation, and that the Tribunal asked questions that were intended to elicit from the appellants such evidence they could have shown or intended to show that it would be unreasonable for there to be internal relocation within Bangladesh. No such evidence was given (see [22]). Given the absence of evidence specifically on this question, the primary judge held it was reasonably open to the Tribunal to take this into account when determining the question. The primary judge then (at [23]) rejected the appellants' submission that the Tribunal failed to engage with the question of whether it was reasonable to expect the first appellant to conduct his business remotely or pursue a different occupation if he were to relocate. 29 In all the circumstances, the primary judge concluded the Tribunal understood and correctly applied s 36(2B)(a) of the Act to the circumstances of the appellants, and hence rejected the sole ground of review (at [24]). 30 As I noted at [20] above, the notice of appeal before me is multifarious. 31 First, the appellants contend that the Tribunal failed to consider the reasonableness of relocation based on the first appellant's political opinion. This does not appear to me, at this time, to have any cogency, given that the Tribunal expressly considered and rejected this contention. Put simply, the Tribunal was not satisfied that the first appellant had a political profile or opinion that would place him at risk of harm. 32 Secondly, the appellants contend that the Tribunal failed to assess the reasonableness of relocation. Again, there is nothing that I can see which supports this contention, at least on a preliminary basis. 33 Thirdly, the appellants contend that the Tribunal fell into error by making findings in relation to what the first appellant "should do" (and failed to consider what he "would do") upon his return to Bangladesh. This does not seem, at least on a preliminary basis, to address the fact that the primary judge held that the Tribunal cited the correct test for relocation, and that it was open to the Tribunal to find that the first appellant could return and either not be involved with the shipping industry and work as an engineer, or do other jobs as he has done in Australia. 34 Fourthly, the appellants contend that the Tribunal failed to identify the place, where the appellants could relocate. There was no obligation on the Tribunal to specify a particular place for relocation. Moreover, as set out at [26] above, the Tribunal found that the first appellant's qualifications and work experience would make him well placed to obtain employment in major cities in Bangladesh. D conclusion & orders 35 I am conscious that I have not had the benefit of oral submissions on behalf of the appellants. Certainly, however, my review of the way the case has been put before the Court by the appellants leads me to conclude that it is difficult to see any substantive merit in the appeal. There was no reason for any of the appellants, including the first appellant, to think that the Court would not proceed to determine the matter today in the event that one or other of them was absent. I am satisfied that there is a basis to make the order which the Minister seeks pursuant to FCR 36.75(1)(a)(i), dismissing the appeal. I am fortified in this view by my conclusion that there is nothing, upon my preliminary review of the material, which indicates that the primary judge fell into appealable error, such that a reasonable prospect of success on the appeal is disclosed. 36 In those circumstances, I am satisfied that I ought to dismiss the appeal with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 31 August 2017 SCHEDULE OF PARTIES NSD 419 of 2017 Appellants Fourth Appellant: SZWBN