BFS17 v Minister For Immigration and Anor (No.2)

[2018] FCCA 479

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFS17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 479

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for reinstatement – whether satisfactory explanation for the delay – whether sufficiently arguable case on the merits – no jurisdictional error identified – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, rr.13.03C(1)(c), 16.05(2)(a)

Applicant: BFS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 860 of 2017

Judgment of: Judge Street

Hearing date: 23 February 2018

Date of Last Submission: 23 February 2018

Delivered at: Sydney

Delivered on: 23 February 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Day
DLA Piper Australia

ORDERS

1. The application in a case is dismissed.

2. The applicant to pay the first respondent’s further costs fixed in the amount of $900.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 860 of 2017

BFS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 March 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The Court is currently hearing an application under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (“the Rules”) to set aside an order made by this Court dismissing the application under r 13.03C(1)(c) of the Rules that was made on 6 December 2017.

3. This is a case where the applicant first arrived in Australia on 8 September 2007 holding a Student (TU 571) visa renewed until 15 March 2010 which was cancelled six months later and the applicant departed on 30 September 2008. The applicant returned however, on 1 November 2008. The applicant was enrolled in various courses which were either cancelled or deferred, and his student visa was cancelled on 30 September 2010. The applicant then remained unlawfully in Australia until 6 October 2011 when he lodged a further visa application that was refused on 16 January 2012. The applicant then remained unlawfully in Australia until 30 July 2014 when he lodged the application for a protection visa.

4. The delegate on 7 April 2015, made adverse credibility findings and found the applicant failed to meet the criteria for the grant of a visa under the Act. The Tribunal also made adverse credibility findings and found the applicant failed to meet the criteria under the Act.

5. At the commencement of the hearing, the Court explained to the applicant that the Court was hearing the application in a case to set aside the order made by the Court in the absence of the applicant. The Court explained that there were two issues that the Court was primarily focused upon. Firstly, whether the applicant had a satisfactory explanation for the delay, and secondly, the merits of the applicant’s application. The Court explained that this involved considering whether the applicant had a reasonable arguable case that the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was the subject of a reasonable argument that it was unlawful or unfair. The Court explained if it was satisfied the applicant had a satisfactory explanation for his failure to appear and a case on the merits, the order made in his absence would be set aside and the matter would be fixed for hearing on another occasion.

6. The Court explained to the applicant that if not satisfied with the applicant’s explanation for his failure to appear and if not satisfied that the grounds of the application reflected a reasonably arguable case, the application in a case would be dismissed with costs. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

The applicant’s explanation for his failure to appear

1. The application in a case was filed on 20 February 2018. The applicant asserted that he had not received notification of the hearing date before the Court and that that was the reason why he failed to appear. Evidence has been led as to the sending of notifications to the applicant’s email address on 20 September 2017, as well as on 29 November 2017. That email address is the same email address identified by the applicant as being his current email address.

2. The applicant from the bar table has identified that he did not check his emails. The applicant’s failure to check his emails was his own fault. The explanation for the applicant’s failure to appear before the Court is entirely unsatisfactory. On that ground alone, the application in a case to set aside the order made on 6 December 2017 should be dismissed.

The grounds

1. However, taking into account the merits as well, the grounds of the application are as follows:

   1. The Tribunal erred in taking into account the passage of time since the applicant father’s death, namely, the length of time does not ease the jealous relative taking revenge on the applicant and his family.

   2. The Tribunal erred in making a finding without supporting evidence.

   3. The Tribunal erred in the expectation that the applicant in his child age would have logical and mature memory of what has happened to his family and himself.

   4. The Tribunal erred in taking into account of the level of bible knowledge to determine whether the applicant is Christian adherent.

Ground 1

1. In relation to ground 1, it was relevant to the Tribunal’s reasons to take into account the passage of time since the applicant’s father’s death in 1993. The applicant alleged that he had been murdered by jealous relatives. The applicant was not accepted in that regard as a matter of credit, and the Tribunal provided reasons in support of the adverse credibility findings. Ground 1 of the application fails to identify any reasonably arguable jurisdictional error.

Ground 2

1. In relation to ground 2, the generalised assertion of a finding unsupported by evidence is not on its face capable of identifying any arguable jurisdictional error. The Tribunal made findings in relation to the applicant’s credit that were open to it for the reasons given by the Tribunal and cannot be said to be illogical, irrational or unreasonable. Nothing said by the applicant identified any reasonably arguable jurisdictional error as alleged in ground 2.

Ground 3

1. In relation to ground 3, the Tribunal expressly took into account the applicant’s age, that he was very young, and that the Tribunal did not expect him to remember details of events that happened when he was a child. The Tribunal went on however to state that if the applicant was claiming harm and future harm on the basis of avenging his father’s death, then the Tribunal would have expected the applicant to have taken time and care to be clear about when certain events happened. It was in that regard that the Tribunal made observations in relation to the death certificate of the father, and that the father appeared to have been killed in a car accident.

2. The Tribunal found the proposition advanced by the applicant that his father was murdered by a jealous relative to be implausible. The Tribunal found that even if it had accepted that the father was murdered, the Tribunal did not accept the applicant would return to China and avenge his father’s death. In coming to that conclusion, the Tribunal took into account the passage of time since the father’s death and the length of time the applicant had lived in Australia, and that the applicant now has a child himself. Ground 3 fails to identify any arguable of jurisdictional error.

Ground 4

1. In relation to ground 4, the Tribunal made findings in relation to the applicant’s claims of fear or harm by reason of his faith in Christianity. Those adverse findings were not made by the Tribunal arbiter of faith.

2. It was legitimate for the Tribunal to explore with the applicant his knowledge of Christianity, and the finding that his knowledge was rudimentary and not reflective of someone who claimed to have attended church as long as he can remember, was open to the Tribunal, in the context of the adverse credit findings the Tribunal ultimately made. The Tribunal did not accept the applicant was a Christian, and that he attended church in Australia. Ground 4 fails to make out any reasonably arguable case of jurisdictional error.

Conclusion

1. Accordingly, the merits of the application are lacking and do not disclose any arguable ground of jurisdictional error and there would be no utility in setting aside the orders made on 6 December 2017.

2. In the circumstances of the present case, for the reasons given above, the Court finds the applicant’s explanation for the failure to appear is entirely unsatisfactory, and for that ground alone the application in a case should be dismissed.

3. Further, the Court finds, taking into account the grounds identified in the application, the merits of the substantive grounds are insufficient to warrant the Court setting aside the order made on 6 December 2017. There would be no utility in setting aside the order on 6 December 2017, even if a satisfactory explanation for failure to appear had been provided.

4. In these circumstances, the Court is not satisfied that the interests of the administration of justice warrant setting aside the order made on 6 December 2017. Accordingly, the application in a case in a case is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 July 2018