BFW18 v Minister for Home Affairs

[2018] FCCA 2052

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFW18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2052

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 426A, 441A, 441B, 441C

Migration Regulations 1994 (Cth)

Cases cited:

BDW18 v Minister for Home Affairs & Anor [2018] FCCA 2045

Applicant: BFW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 676 of 2018

Judgment of: Judge Driver

Hearing date: 26 July 2018

Delivered at: Sydney

Delivered on: 26 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr C O’Sullivan of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 676 of 2018

BFW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 February 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s claims for protection and the Tribunal’s decision on them are set out in the Minister’s outline of submissions filed on 19 July 2018.  

3. The applicant is a citizen of China.  The applicant entered Australia on 17 September 2014 on a three-month subclass 600 Business Visitor visa.[1]  He departed Australia on 19 September 2014 and returned to China.[2]

   [1] Court Book (CB) 37

   [2] CB 29

4. The applicant last re-entered Australia on 13 October 2014 and lodged a protection visa application on 16 December 2014, the day before his visa was due to expire.[3]  The delegate refused to grant the visa on 17 November 2015.[4]

   [3] CB 37, 45

   [4] CB 37 to 54

5. The applicant sought review of the delegate’s decision by the Tribunal on 2 December 2015.[5]

   [5] CB 55 to 57

6. The applicant failed to attend a hearing held on 22 February 2018, and the Tribunal affirmed the decision under review on the same day.[6]

   [6] CB 83 to 89

Protection claims

1. In his application for a protection visa, the applicant provided a personal statement detailing his protection claims.[7]

   [7] CB 28 to 30

2. The applicant claimed that he is of adverse interest to the local government for his whistleblowing activities in exposing the corruption of the village secretary general, Mr GL.

3. The applicant claimed he lodged a petition letter in May 2014 to the petitioning department. He claimed he was then intercepted by petition department staff and detained for a week at the “Petitioners Remand Centre” before being released. He claimed he was requested to withdraw his petition and asked to sign a guarantee letter that he would not petition again. After this, the applicant claimed he was monitored by his neighbours.

4. Upon returning to China in September 2014, the applicant claimed to have sent a letter to the petition office. He claimed he then stayed in Beijing because he was afraid to go to his hometown as he had heard that Mr GL had used gangsters to track him. The applicant claimed Mr GL harassed his wife and beat one of his children, and told them that he would beat the applicant to death if he returned home.

5. After his second arrival in Australia, the applicant’s family allegedly told him that police came to his house and enquired about his whereabouts and told him to report to police within one month.

Tribunal decision

Non-appearance

1. The Tribunal was satisfied that the applicant was properly invited to the hearing in accordance with s.441A(5) of the Migration Act 1958 (Cth) (Migration Act), as the email invitation did not fail to send. The Tribunal decided, pursuant to s.426A of the Migration Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.[8]

Substantive application

[8] CB 84 at [4]

1. The Tribunal identified that the issue for determination was whether or not the applicant is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.[9]

   [9] CB 85 at [11]

2. Given the claims made by the applicant had occurred before his first visit to Australia, the Tribunal was not satisfied as to why he sought China’s protection, essentially by returning there in September 2014, instead of staying in Australia and preparing a protection visa application. The Tribunal noted that the applicant did not in fact apply for a protection visa until the day before his visa expired on his second visit and was not satisfied with this delay, as well as that there was no material provided to support any of the applicant’s claims.[10]

   [10] CB 85 to 86 at [14]

3. Given the claim that he was being pursued by China’s authorities over trying to escalate the alleged petitions and protests, the Tribunal required more information as to how he was able to depart China twice under the full view of the authorities or enter the population in Beijing during his return visit to China (which it could not obtain from the applicant as he failed to attend the hearing).[11]

   [11] CB 86 at [15]

4. The Tribunal concluded that, without more from the applicant, who did not respond to the invitation to provide more information at a hearing, the Applicant did not satisfy s.36(2)(a) or s.36(2)(aa) of the Migration Act.[12]

   [12] CB 86 at [17]

The present proceedings

1. These proceedings began with a show cause application filed on 15 March 2018.  The applicant continues to rely upon that application.  The two grounds in it are:

   1.The tribunal does not accept that I face a real chance of seviour harm at the hands of that Chinese government officer.  It is unfair that the Tribunal refused me based on theie understanding, regardless about my situation. They did not consider my real situation in China. That chinese government officer persecuted me.

   2.If I return to China, I will continue to be persecuted by the Chinese local government and I am very scared. I hope Australia government could protect me and give me another chance to detailed describe my experience and provide more evidence.

   (errors in original)

2. I note in passing that the grounds are effectively identical to the grounds advanced as Grounds 2 and 3 in the case of BDW18 v Minister for Home Affairs & Anor.[13]  The applicant in that case told me, as, indeed, the applicant in this case did, that the application was prepared by a friend as a favour who required no payment for it.

   [13] [2018] FCCA 2045

3. The application is supported by a short affidavit filed with it, which I received. 

4. I also have before me as evidence the book of relevant documents filed on 2 May 2018. 

5. Only the Minister filed pre-hearing submissions in accordance with procedural orders made by a registrar.  I invited oral submissions from the applicant today.  He stated that the Tribunal had not seriously considered his claims.  In terms of the process followed by the Tribunal, he asserts that the Tribunal looked at Australian law without looking at Chinese law. 

6. I pointed out to the applicant that his critical problem before the Tribunal was that he did not attend the hearing to which he was invited.  I asked why he did not attend that hearing.  He said that he was not in Sydney at the time and needed an interpreter.  I showed the applicant the hearing invitation sent to him by email.[14] He confirmed the email address to which the invitation was sent as his. There was nothing to alert the Tribunal to any problem concerning the applicant’s attendance at the hearing. I am satisfied that the Tribunal met its obligations under the Migration Act to invite the applicant to a hearing when it was unable to make a favourable decision on the papers.

   [14] CB 66 and 67

7. The applicant told me that he is expecting further evidence from China to support his claims for protection.  As I told him, that additional material cannot assist the Court in assessing the validity of the Tribunal decision.  With that in mind, I declined an invitation from the applicant to defer a decision until that information arrived. 

8. I otherwise agree with the Minister’s submissions on the grounds of review advanced. 

9. Each of Ground 1 and Ground 2 as put amount to an attempt to cavil with the merits of the Tribunal’s decision.  To the extent that the applicant argues by Ground 1 that the Tribunal failed to consider his protection claims, the decision record demonstrates that the Tribunal considered the applicant’s claims and found that it could not be satisfied on the available evidence that there was a real chance of persecution or a real risk of significant harm upon the applicant’s return to China.[15]

   [15] CB 176 at [38], [40]-[41]

Non-appearance

1. Section 426A(1A)(a) of the Migration Act relevantly provides that the Tribunal may by written statement make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The Tribunal’s exercise of its discretion to make a decision without taking any further action to enable the applicant to appear before it was open to it in the circumstances.

2. On 20 December 2017, the Tribunal invited the applicant by email to give evidence and present arguments at a hearing on 22 February 2018.[16]  The applicant is taken to have received the email at the end of the day on 20 December 2017.[17]  As such, the 14 day required notice period is satisfied.[18]

   [16] Section 441B(5) of the Migration Act

   [17] Section 441C(5) of the Migration Act

   [18] Regulation 4.21 of the Migration Regulations 1994 (Cth)

3. The invitation stated that if the applicant did not attend the hearing, the Tribunal might make a decision on the case without further notice.

4. The Tribunal also sent the applicant SMS reminders[19] about the hearing, respectively five and two business days before the scheduled hearing, although these reminders failed to be received at the telephone number he had previously provided.

   [19] CB 77

5. I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Tribunal. 

6. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

7. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not oppose an order for costs in principle, although he indicated he will probably require time to pay.  I will not require payment of the costs in any particular time. 

8. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  1 August 2018