BIH15 v Minister for Immigration and Anor (No.2)

[2016] FCCA 1376

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIH15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 1376

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – application to reinstate – whether there is an adequate explanation for the applicant’s failure to appear – whether the applicant has an arguable case – whether the Tribunal’s decision was unreasonable and unsupported by evidence – whether the Tribunal took irrelevant considerations into account – no arguable jurisdictional error identified – application in a case dismissed.

Legislation:

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

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

Cases cited:
Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: BIH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1923 of 2015

Judgment of: Judge Street

Hearing date: 7 June 2016

Date of Last Submission: 7 June 2016

Delivered at: Sydney

Delivered on: 7 June 2016

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Ms R Francois

Solicitors for the First Respondent: Ms R Krishnan
Australian Government Solicitors

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $520.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1923 of 2015

BIH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under r.16.05(2)(a) of Federal Circuit Court Rules 2001 to set aside the order of the Court made in default of appearance of the applicant on 8 April 2016. The substantive application is one for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 18 June 2015 affirming a decision of the delegate not to grant the applicant a protection visa. Following the lodgement of the substantive application, an order was made by a Registrar of the Court on 6 August 2015 providing the applicant with an opportunity to file an amended application and affidavit evidence and standing the matter over for a callover in July 2016 and granting liberty to apply for further directions on three days’ notice.

2. The applicant’s address on the substantive application is one to which there was sent a communication on 4 March 2016 notifying the applicant of a callover before the Court on 8 April 2016. At the callover on 8 April 2016, the applicant was called and had not appeared, following which there was an application made for dismissal of the proceedings under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. For the reasons given on 8 April 2016, the Court made an order dismissing the application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

3. The application to set aside the default order is supported by an affidavit by the applicant.  At the commencement of the hearing, the Court explained to the applicant that the issues raised by the applicant’s application involved first whether there was an adequate explanation for his failure to appear and, secondly, whether there was a sufficiently arguable case to mean that there was utility in setting aside the orders made by the Court on 8 April 2016. 

4. The Court explained that a sufficiently arguable case had to involve a sufficiently arguable case of legal error by the Tribunal. The Court explained that the legal error by the Tribunal had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness by the Tribunal.  The Court summarised that this meant that there had to be an arguable case that the Tribunal’s decision was not lawfully made or was not fairly made.  The applicant identified that he wanted repeated the issues in the proceedings and the Court repeated the explanation as to the nature of the hearing, as referred to above, and the applicant confirmed that he understood the explanation given by the Court.  The Court then explained to the applicant that it would identify the evidence and then hear submissions from the applicant and then submissions from the first respondent’s solicitor and then submissions from the applicant in reply. The applicant confirmed that he understood what the Court had said. 

5. The first respondent sought to cross-examine the applicant on the affidavit in support of the application in a case.  That affidavit asserted that the applicant never received the notification of the callover date and that the applicant only came to know of the default decision of this Court on or about 3 June 2016.  No explanation as to how the applicant came to know about the decision was set out in the affidavit.  In cross-examination, the applicant confirmed that he had lived at the same address since the filing of his application. 

6. The applicant maintained that he did not receive the letter.  The applicant asserted that he came to know of the decision because he rang up to speak to his lawyer about the potential forthcoming date in July 2016.  The applicant’s evidence in relation to how he came to know about a decision of the Court is unconvincing.  It was not set out in the applicant’s affidavit and the applicant first advanced that his solicitor had told him that the matter had been listed on 8 April 2016 and that had passed. 

7. The applicant subsequently proffered that he had been told that there had been a decision given against him on 8 April 2016.  The applicant’s explanations in this regard were not consistent.  Further, the applicant confirmed that he has been in Australia since 2000.  The applicant initially advanced that he did not understand English.  The applicant then explained that he understood a little bit of English.  At the time that the applicant was sworn, the applicant was provided with a copy of his affidavit to identify his name and it was apparent that the applicant was able to read the affidavit to identify his name. 

8. Further, the applicant responded on occasions in English.  The applicant’s lack of candour in relation to his ability to speak English is also a matter that the Court takes into account in relation to the submissions advanced by the first respondent as to whether the applicant’s evidence should be accepted.  The first respondent submitted that the Court should find that the applicant did receive the notification sent by a letter dated 4 March 2016 to the applicant’s correct address identified on the application. 

9. There is nothing on the application to identify that the applicant had a solicitor acting for him.  The applicant’s explanation about the role of the solicitor was also unsatisfactory.  The Court does not accept the applicant’s evidence that he did not receive the notification and accepts the first respondent’s submission that there is not a satisfactory explanation for why the applicant did not appear at the callover.  The critical issue is whether there is any utility in setting aside the Court order.  In deciding whether the applicant has a sufficiently arguable case to warrant setting aside the Court order, the Court takes into account the principles and caution in Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60]..

10. The grounds of the application are as follows:

    1. The Tribunal erred in arriving at a conclusion without supported evidence.

    2. The Tribunal committed jurisdictional error in it consideration of whether the applicant would face a well-founded fear of persecution, or a real risk that he would suffer significant harm.

    3. The Tribunal failed in taking into account of irrelevant considerations.

    Particulars

    At paragraph 24, there is no inconsistent with the applicant's ability to raise a much larger sum of money and the applicant having a little money.

11. From the bar table, the applicant complained that the Tribunal looked only at complementary protection and, otherwise in-chief, did not advance any submissions.  The solicitor for the first respondent put submissions as to why there is no arguable case in relation to ground 1.  The Court was taken to the Tribunal’s decision and the adverse credibility findings made by the Tribunal that were said to be open. 

12. The Court was taken to the reasoning of the Tribunal identifying evidence in support of the Tribunal’s ultimate finding that it was not satisfied there were substantial grounds for believing that it is a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk he will suffer significant harm and that the criteria under s.36(2) of the Migration Act 1958 was not made out and that the decision of the delegate was affirmed.  The first respondent submitted that ground 1 identified no arguable case of jurisdictional error. 

13. The first respondent, in relation to ground 2, identified that the Tribunal correctly confined its consideration to the issue of complementary protection and that it was not open to the Tribunal to reconsider whether the applicant had a well-founded fear of persecution.  The first respondent said that the adverse finding in relation to whether the applicant had a real risk that he would suffer significant harm was a finding that was open to the Tribunal for the reasons given by the Tribunal and that ground 2 failed to identify any arguable case of jurisdictional error. 

14. The solicitor for the first respondent submitted that ground 3, insofar as referring to an irrelevant consideration, appears to be intended to refer to the failure to take into account a relevant consideration. The solicitor for the first respondent submitted that, however construed, the reasoning of the Tribunal in para.24 was not inconsistent and that there was no irrelevant consideration taken into account by the Tribunal. It was submitted that there was no argument open that the Tribunal had failed to take into account a relevant consideration insofar as the proposition was advanced that the applicant’s ability to obtain money to repay a loan was inconsistent with the applicant’s ability to obtain funds to leave China. The solicitor for the first respondent submitted that ground 3 failed to identify an arguable jurisdictional error. 

15. In response to the submissions of the solicitor for the first respondent, the applicant said:

    If I’m not believed, what can I do?

16. The applicant maintained that he was detained and that his life would be put at risk if returned to China.  The applicant said that the decision was unfair but there was nothing he could do about it if he was not believed. 

17. In response to why the applicant had not appeared, the applicant identified that he had to pay someone money and maintained that the Court should believe him and said, “That’s all”, in response to the invitation by the Court as to whether there was anything else he wished to say.  I accept the submissions of the first respondent that there is no utility in the present case in setting aside the order of 8 April 2016.  Taking into account the caution and warning to which I have earlier referred, I am satisfied that there is no arguable case of jurisdictional error on the face of the application. 

18. I accept the submissions of the first respondent in relation to ground 1 of the application.  An analysis of the reasons of the Tribunal identified the applicant’s claims and evidence, summarised what occurred at the hearing at which the applicant appeared to give evidence and present arguments on 3 June 2015 and provided detailed reasons in relation to assessing the applicant’s claims and that the adverse credibility findings made by the Tribunal were open. Nothing said by the applicant identified any basis upon which ground 1 could be said to disclose any arguable case of jurisdictional error.  I am satisfied that ground 1 fails to identify any arguable case of jurisdictional error. 

19. In relation to ground 2, I accept the first respondent’s submission that the Tribunal was correct in not addressing the issue of whether the applicant had a well-founded fear and that the Tribunal addressed the correct legal question in respect to the applicant’s second application for protection.  The applicant was found to be a citizen of China and first applied for protection on 24 February 2000 which was refused by a delegate on 14 March 2000.  On 30 November 2013, the applicant made a second application for protection which was denied by the delegate on 2 July 2014 and the applicant then sought a review of that decision before the Tribunal on 25 July 2014. 

20. On the face of the Tribunal’s decision, it is apparent that the applicant had a genuine hearing and the adverse finding as to whether the applicant would suffer significant harm was open to the Tribunal and cannot be said to lack an evident and intelligible justification.  Ground 2 fails to identify any arguable issue of jurisdictional error.

21. In relation to ground 3, whether read as referring to any irrelevant consideration or a relevant consideration, the reference to para.24 of the Tribunal’s reasons does not identify any jurisdictional error.  There is no inconsistency in the Tribunal’s reasoning in relation to the applicant’s ability to raise moneys to repay a loan in comparison to the applicant’s ability to raise moneys to leave China.  There was no relevant consideration identified that the Tribunal failed to take into account.  The matter referred to in para.24 cannot be said to be an irrelevant consideration.  Ground 3 fails to identify any arguable issue of jurisdictional error.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

22. In these circumstances, I am not satisfied that there would be any utility in setting aside the order made by the Court on 8 April 2016.  I am not satisfied that the interests of the administration of justice require the setting aside of the order made on 8 April 2016.  For the above reasons, the application in a case is dismissed.

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

Associate: 

Date:  16 June 2016