BBW15 v Minister for Immigration - [2015] FCCA 2449

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBW15 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2449

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – application for reinstatement – applicants failed to appear on first court date – whether satisfactory explanation of the failure to appear – whether arguable case – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2)(b), 36(2)(c), 476

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

First Applicant:

BBW15

Second Applicant:

BBX15

Third Applicant:

BBY15

Fourth Applicant:

BBZ15

Fifth Applicant:

BCA15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1658 of 2015

Judgment of:

Judge Street

Hearing date:

7 September 2015

Date of Last Submission:

7 September 2015

Delivered at:

Sydney

Delivered on:

7 September 2015

REPRESENTATION

The first applicant appeared in person

Solicitors for the Respondents:

Ms M Stone
DLA Piper

ORDERS

The application in a case is dismissed.
The First and Second Applicants pay the First Respondent’s costs of the application in a case fixed in the amount of $800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1658 of 2015

BBW15

First Applicant

BBX15

Second Applicant

BBY15

Third Applicant

BBZ15

Fourth Applicant

BCA15

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application in a case within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) seeking to have set aside an order made by the registrar on 13 July 2015 dismissing the applicants’ application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 due to the failure of the applicants to appear. The first applicant has put on an affidavit seeking to explain the circumstances in which he did not appear. That affidavit suggested that the applicant received a document on 14 July 2015 with a notation in respect of time and place and date for hearing with the words “to be advised”, and, having consulted a friend, it was on that basis that he did not appear.
Prior to 14 July 2015, the applicant had received a notification on his filed application identifying a hearing date of 30 July 2015 at 9.30 am, Court 9.1, Level 9, 80 William Street, Sydney. The applicant gave evidence that it was clear that document required him to attend on that date and that his friend had told him that as well. The applicants’ application originally filed had omitted p.3. It is clear that the registry did contact the applicant and notified the applicant that he needed to lodge the complete application.
It was in response to that attendance by the applicant to file the missing page 3 that the applicant received a document that had on it the same notation as the original application when filed, which had beside the time and date for hearing “to be advised”. The applicants’ affidavit did not fully or properly explain the filing of the further page that had been omitted from the application first filed. Whilst the further document received by the applicant from the Court did identify a time and date for hearing to be advised, I find that the applicant knew that he had received a notification in respect of the very same application identifying a hearing date on 30 July 2015.
Moreover, it is clear that the applicant also received prior to 30 July 2015 a letter from the solicitors for the first respondent dated 6 July 2015 confirming the hearing date on 30 July 2015 at 9.30 am and the location. That was a matter not addressed in the affidavit by the applicant, and the applicant proffered no satisfactory explanation as to why he did not contact the solicitors for the first respondent in those circumstances. In considering whether or not the application to set aside the order made under r.13.01C(1)(c) should be granted, the Court requires a satisfactory explanation of the failure to appear and identification of a sufficiently arguable case.
I do not accept the applicant’s explanation that the further document dated 14 July 2015 which bore on it “to be advised” provided an adequate explanation for his failure to appear, when he knew he had filed the incomplete document and that he had received notification of a hearing date on 30 July 2015 and, further, in circumstances where he had received a letter from the first respondent notifying him of the hearing date. On that ground alone, I would reject the application to set aside the order made by the registrar.
The first respondent, however, also relied upon the proposition that there is no sufficiently arguable case. The application identifies the following grounds:
1. The Refugee Review Tribunal decision (1409350) is affected by legal error.
The first applicant had arrived in Australia on a tourist visa on 22 January 2010 and applied for protection on 22 April 2010. The first applicant’s claim for protection was refused, and the Tribunal affirmed that refusal on 4 March 2011. The first applicant lodged a fresh claim for protection on 21 September 2012 for protection on complementary grounds, and it was that application that was the subject of the determination by the Tribunal, consistent with the principles identified in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71.
I accept the first respondent’s submission that the bare assertion of the decision being affected by legal error fails to identify any arguable jurisdictional error. This is a matter where the Court has the benefit of the Court book. It is apparent that the applicant was invited to attend a hearing by letter sent on 3 February 2015 to be held on 24 April 2015, which the first and second applicants attended and were assisted by an interpreter and also represented by a migration agent.
In this case the Tribunal held the first applicant was not a witness of truth and had fabricated some of his material claims for the purpose of obtaining a protection visa. Relevantly, the Tribunal said:
68. The Tribunal does not accept that the first named applicant or members of his family were supporters or members of GAM in Indonesia. The Tribunal accepts that he may have had some sympathy for their views but does not accept that they were his political opinions or convictions. It follows that the Tribunal does not accept any of his claims in relation to his association with GAM, support for the independence of Aceh or opposition to the MOU. The Tribunal does not accept that the Summons and the letter from the Head of the [X] Village dated 23 February 2010 are authentic documents. The Tribunal does not accept that the first named applicant left Indonesia because of his political opinions and activities or because he feared for his safety and his life. The Tribunal does not accept that he was of adverse interest to the Indonesian authorities.
69. The Tribunal accepts that in Australia the first named applicant joined the GIAS and that he had attended meetings and the annual anniversary celebrations at someone’s house. The Tribunal accepts that he has written a letter to Hilary Clinton. The Tribunal accepts that he has attended meetings and human rights rallies organised by RAC. The Tribunal does not accept that he has had an organizational or leadership role in any of these activities. The Tribunal is of the view that the first named applicant engaged in these activities for the purpose of enhancing his claims to Australia’s protection rather than for the purpose of expressing his political convictions.
70. The Tribunal notes that the provisions of s.91R(3) of the Act do not apply to complementary protection. The Tribunal is not satisfied, on the evidence before it, that the first named applicant’s activities in Australia would have brought him to the adverse attention of the Indonesian authorities or that he is of adverse interest to them. The Tribunal does not accept that his activities in Australia are known to pro-MOU GAM members in Indonesia or that he is known as a pro-independence GAM member.
71. The Tribunal does not accept that the first named applicant will seek to advocate for the independence of Aceh or oppose the MOU if he returns to Indonesia now or in the reasonably foreseeable future.
72. Having considered all the claims and evidence, for the reasons given above and findings made above, the Tribunal is not satisfied that there is a real risk that the first named applicant will suffer significant harm for any of the reasons claimed if he returns to Indonesia now or in the reasonably foreseeable future.
73. Having considered all of the first named applicant’s claims, individually and cumulatively, the Tribunal is not satisfied, for the reasons given above, that the first named applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Indonesia now or in the reasonably foreseeable future.
74. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the first named applicant does not satisfy the criterion in s.36(2)(aa).
It was in those circumstances the Tribunal found that the first applicant was not a person who met the complementary criteria under s.36(2)(aa) and was not a person in respect of whom the first-named applicant could satisfy the criteria under s.36(2), and it was in those circumstances that the second, third and fourth applicants were unable to satisfy the criteria under ss.36(2)(b) or 36(2)(c).
Nothing was said by the first applicant from the bar table to identify any arguable jurisdictional error. I am satisfied in this case that there is no sufficiently arguable jurisdictional error to warrant the setting aside of the order made by the registrar. Even if the Court had accepted the first applicant’s explanation as being satisfactory, which the Court does not, this is not a case where there is a sufficiently arguable jurisdictional error to warrant the setting aside of the order by the registrar. The application in a case is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 9 September 2015