BEN15 v Minister for Immigration

[2015] FCCA 2756

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEN15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2756

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – dismissal due to non-appearance – application for reinstatement of judicial review application – whether applicant was notified of time and date of first court date listing – whether the applicant has a reasonably arguable case – no arguable case demonstrated – reinstatement application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.477(1), 477(2)

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: BEN15

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1777 of 2015

Judgment of: Judge Manousaridis

Hearing date: 28 September 2015

Delivered at: Sydney

Delivered on: 28 September 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent: Ms R. Krishnan of
Australian Government Solicitor

ORDERS

1. The application in a case filed on 8 September 2015 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $780.

3. The name of the second respondent be changed to read “Administrative Appeal Tribunal”.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1777 of 2015

BEN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 29 June 2015, the applicant filed an application in this court for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to refuse the applicant a protection visa. 

2. The application was listed for a first court date before a Registrar of this court at 2.00pm on 16 July 2015. At that time and date, the applicant did not appear and a Registrar of this court made an order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) dismissing the application for judicial review. 

3. On 8 September 2015 the applicant filed an application in a case. Although that application does not, in terms, seek an order that the orders made on 16 July 2015 be set aside, I have assumed that that is the relief the applicant is seeking. Under r.16.05(2)(a) of the FCC Rules, the Court has power to set aside orders made in the absence of a party.

4. The principles that govern the Court’s exercise of the power under r.16.05(2)(a) of the FCC Rules were discussed by Ryan J in MZYEZ v Minister for Immigration and Citizenship where his Honour said:[1]

   In circumstances where . . . a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

   (a) whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c) whether the applicant has a reasonably arguable prospect of success on the substantive application.

   [1] [2010] FCA 530 at [7]

5. In the application in a case filed by the applicant, under the heading “Orders Sought”, the applicant provides an explanation for her non-appearance.  She there stated that she:

   …didn’t receive any notification regarding 16/07/2015 first court [date]. Federal Circuit Court has the responsibility to make sure that I have been informed to attend the first court [date].

6. The applicant gave evidence before me in which she confirmed she did not receive any notification from the Court of the first court date.  I accept the applicant’s evidence. The application was lodged electronically, although it is not clear whether it was lodged electronically as a result of an email being sent by the applicant or whether it was sent to the registry by way of fax. 

7. Enquiries that I caused to be made indicate that the Registry did not send any email to the applicant after the application was accepted by the Registry.  It is possible that the sealed application may have been posted, but there is no evidence to suggest that it was sent by post.  It is also possible that the sealed copy may have been sent by fax, given that there is a suggestion in the evidence that the applicant lodged her application with the Registry by fax.  That, however, was not explored in the evidence before me.

8. I then move to consider whether, if I were to set aside the Registrar’s orders of 16 July 2015, the applicant would have reasonable prospects of success on the claims which she makes in her application. And here, there is an additional complexity; and this arises from the fact that the applicant lodged her application for review of the Tribunal’s decision some three days after the 35 day period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Act). Thus, the question is whether the applicant would have reasonable prospects of obtaining an order under s.477(2) of the Act. That requires me to consider whether the applicant has given a reasonable explanation for her not filing the application within the 35 day period and the length of the delay. It also requires me to consider the question which I would, in any event, consider, and that is whether the applicant has reasonable prospects of showing her application would have merit, if an order extending time under s.477(2) were made. At any rate, the question is similar.

9. The explanation the applicant gives in her application for the delay is that she believed the 35 day period commenced from the date she was notified of the decision, not the date of the decision. That by itself is not a reasonable explanation. However, given that the applicant filed the application only three days after the expiration of the relevant period, I find that there would be no serious prospect that the applicant’s delay would by itself cause the Court not to extend time under s.477(2) if the Court were otherwise satisfied the applicant’s claim would have some merit. It is to that question I now turn and in order to determine it, I must first set out the claims for protection the applicant made.

10. The applicant, who is a citizen of the People’s Republic of China, claimed a bag of heroin was found in her car because her husband set her up on false drug charges.  The applicant claims her husband, with the assistance of his friend, the local chief of police, arranged for her to leave China and travel to Australia.  The applicant claimed her husband set her up to get her out of the country so that he could seize her property and stay with his mistress. The applicant claimed she fears she will be gaoled or executed if she were to return to China. 

11. The Tribunal did not accept as credible the applicant’s account of the circumstances in which she fears returning to China.  The Tribunal found the applicant’s account contained “significant inconsistencies and gaps, is inherently implausible” and that the applicant “appeared to change her evidence from time to time in a manner suggesting that she would say anything regardless of whether it was the truth”. The Tribunal found the applicant, when asked about the circumstances which led to her departure from China, recounted the facts set out in her written statement in a rehearsed fashion; that the applicant’s description of what was found in the boot of her car was extremely vague; and that the applicant’s evidence about what happened at the police station was hesitant, difficult to obtain and somewhat evasive and did not appear to reflect her actual experience. The Tribunal found the applicant’s account of having passed out when she was hit by the police and her waking up at home the next day highly implausible and that the applicant’s lack of knowledge about whether charges were actually laid against her rendered “the entire basis of her claimed fear of harm highly speculative, even if the broad details were accepted”. The Tribunal found the applicant’s account of the events which led to her departure to be unpersuasive.

12. The Tribunal found the applicant’s account of the harm she claims to fear and the reasons for her claimed fears to have been illogical.  It so found because the applicant stated she was not worried about the drug case, she was worried that her son will not belong to her, and her husband will make arrangements that the house will be his. When the Tribunal put to the applicant that such property and custody issues do not fall for consideration under the Refugees Convention and that the applicant’s husband could seek court orders in relation to these matters while the applicant is outside China, the applicant said her husband could not do such thing without her signature.  The Tribunal found the applicant’s account did not make sense because if, as the applicant claims, her husband did wish to get rid of her so he could be with his mistress, take their property and obtain custody of their son, it seemed “these ends would more readily be achieved if the applicant, had, in fact, been executed on drug charges, or even imprisoned”.

13. The Tribunal found the applicant was not truthful about other matters.  These included the arrangements the applicant claims were made for the applicant to travel to Australia.  The Tribunal found there were numerous inconsistencies in the applicant’s evidence about where she was from the time she claims to have been sent to Shanghai by her husband and her arrival in Australia, and, on numerous occasions, the applicant changed her evidence when her account was challenged.

14. Another matter about which the Tribunal found the applicant gave unsatisfactory evidence related to the timing of the applicant’s departure from China.  This information was inconsistent with the applicant’s claims.  The applicant applied for a visa on 23 December 2013, some six weeks after 5 November 2013, being the day on which the applicant claims drugs were discovered in her car, and she left China on 9 February 2014.  The Tribunal also found relevant the fact that the applicant had a visa to enter Malaysia which was valid for three months on and after 30 September 2013, yet the applicant did not take advantage of that right. 

15. The Tribunal also found the applicant to be evasive in her evidence about her contact with her son, that the applicant did not give truthful evidence about the circumstances in which she prepared her application for a protection visa, and her explanation for not attending an interview before the delegate.  Having not accepted the applicant was a witness of truth, the Tribunal found her claims for protection should not be accepted. 

16. I now turn to the application for review filed in this court.  It contains one ground and that is:

    It was emphasised that there would be critical documents coming from overseas which can be used as evidence of the genuineness of my claim, however RRT did not treat us with fairness and justice, because the tribunal would not accept that I am true refugees at first.

17. This ground was interpreted to the applicant and I explored with her what the applicant understood by the ground. The applicant understood the ground to contain two elements.  The first is that she has sought information from China that would help her case.  The applicant was unable to tell me what information she has sought, other than to refer to “certain certificates”. The applicant indicated that she intended to present that information to the Court.  She confirmed, however, that she did not mention to the Tribunal that these documents were coming from overseas. This cannot arguably raise any meritorious ground of jurisdictional error by the Tribunal, given that the applicant did not inform the Tribunal that she was expecting to obtain documents from overseas that are relevant to her claim.

18. The second element of the ground contained in the application which I understood the applicant to make is the contention that the Tribunal did not treat the applicant fairly or with justice because the Tribunal did not accept the applicant was a true refugee.  I asked the applicant whether there was any other reason why she claimed the Tribunal did not treat her fairly or with justice but the applicant said there was no other reason. This too cannot arguably raise a meritorious ground of jurisdictional error by the Tribunal. That the Tribunal did not accept the applicant’s claim for protection cannot by itself arguably raise any jurisdictional error. In my opinion it is beyond argument that it was reasonably open to the Tribunal not to accept the applicant as a witness of truth for the reasons it gave and to accordingly affirm the delegate’s decision.

19. The Minister also referred to the delay in the applicant filing the application in a case to set aside the Registrar’s orders.  There is evidence which suggests that on 20 July 2015 the Minister sent an email to the email address specified in the application notifying the applicant of the orders made on 16 July 2015.  The applicant gave evidence about when she first became aware of the Registrar’s orders.  I found the evidence difficult to accept because it was vague and lacking in any form of particularity.  However, I give no weight to the delay in the applicant’s applying to set aside the orders of the Registrar. 

20. I have considered the question of prejudice to the Minister.  It was submitted, however, that there is no prejudice to the Minister if the orders of the Registrar were to be set aside.

21. Before I conclude, I must record that I have borne in mind that on this application there was not before the Court documents that are normally contained in what are referred to as court books.  I am satisfied however that from the open-ended questions I asked of the applicant about why she claimed the Tribunal acted unfairly and without justice and the answers the applicant gave that it is safe for me to conclude the applicant does not arguably have a meritorious claim based only on the Tribunal’s reasons for decision, the other evidence that was before me today and the submissions that were made before me today.

22. For these reasons, therefore, I am not prepared to exercise the discretion under r.16.05(2)(a) of the FCC Rules to set aside the orders made by the Registrar on 16 July 2015. Accordingly, therefore, I propose to dismiss the application in a case.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 October 2015